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The Delhi Flour Mills Co. Ltd. vs Ram Avtar
2008 Latest Caselaw 16 Del

Citation : 2008 Latest Caselaw 16 Del
Judgement Date : 4 January, 2008

Delhi High Court
The Delhi Flour Mills Co. Ltd. vs Ram Avtar on 4 January, 2008
Author: M Sharma
Bench: M Sharma, R Khetrapal

JUDGMENT

Mukundakam Sharma, C.J.

CM No.136/2008 (exemption)

Allowed, subject to just exceptions.

LPA No.3/2008

1. This appeal is directed against the order dated 7th November, 2007 passed by the learned Single Judge whereby the prayer of the appellant to try the issue as to 'whether the employee claimant (respondent herein) is not a workman' as a preliminary issue was negated by the learned Single Judge.

2. On going through the records, we find that the Labour Court framed the following issues on 28th April, 1998:

1. Whether employee/claimant is not a workman as alleged in preliminary objection of W.S.'

2. Whether the reference is bad as alleged in preliminary objections 3,4 and 5 of the W.S.

3. Whether the two enquiries conducted by management were legal, justified and according to the principle of natural justice'

4. Per terms of reference.

3. At that stage, the order that was passed by the Labour Court was that only issue No.3 should be treated and decided as a preliminary issue. The parties accepted the said decision and led evidence to have issue No.3 decided. By its order dated 30th June, 2003, the Labour Court decided the said preliminary issue against the management by holding that both the enquiries were vitiated on the ground that the enquiries were not fair and proper and were not held in accordance with the principles of natural justice. It appears that an application was moved by the management on 10th December, 2004, more than six years after the framing of issues, before the Labour Court for treating issue No.1 as to whether or not the respondent is a 'workman' as alleged in the written statement filed by the management, as a preliminary issue. The Labour Court by the impugned order dated 20th July, 2005 accepted the aforesaid plea and directed that the said issue as to whether or not the respondent is a workman within the meaning of Section 2(s) of the Industrial Disputes Act may be treated as a preliminary issue.

4. The respondent herein being aggrieved by the said order filed a writ petition in this Court, which was heard by the learned Single Judge and after referring to various decisions of the Supreme Court and other High Courts, it was held that the aforesaid issue may not be decided as a preliminary issue at this stage as there was already a long delay in the trial of the reference. It was also held by the learned Single Judge that the aforesaid issue, which is sought to be urged as a preliminary issue, cannot be strictly said to be a pure question of law, as it involves mixed questions of law and fact which are required to be decided. Consequently, it was ordered that the evidence of the parties be recorded and thereafter all the issues that are left to be decided could be decided by the learned Industrial Adjudicator in accordance with law.

5. Being aggrieved by the said order, this appeal is filed by the management challenging the legality of the order passed by the learned Single Judge. We have perused the records and also heard the learned Counsel for the appellant. The issue that is sought to be urged as a preliminary issue is as to whether the respondent is not a workman. Such a plea is also raised in the written statement.

6. The counsel for the appellant in support of his contention that the aforesaid issue should be allowed to be treated as a preliminary issue relied upon the contentions made in paragraph 4 of the writ petition to show that the respondent claims to have been drawing a salary of Rs. 3,021/- per month from 16th November, 1979. The contention that the respondent is an employee, however, has been denied in the written statement filed by the management and since these are matters which relate to pleadings, the same are required to be proved and established in the trial.

7. In the above view of the matter, we are in agreement with the findings recorded by the learned Single Judge that the aforesaid issue is not a pure question of law, but is a mixed question of law and fact. Such facts which are sought to be relied upon by the management are required to be established and proved through evidence. We, therefore, direct that evidence in the reference proceedings should be allowed to be adduced so that the parties are able to prove their respective cases as pleaded in the pleadings. Once evidence is recorded, it shall be open to the appellant to file an application to hear arguments initially on the question as to whether or not the respondent is a workman and thereafter the learned Industrial Adjudicator may proceed to hear the remaining issues, if there is any occasion for the same. However, it should not be construed that we have in any manner interfered with the earlier orders passed by the learned Single Judge and whatever liberty is available to the appellant under the impugned order will continue to be available. The

Industrial Adjudicator is also directed to dispose of the matter at the earliest since we find from the records that the services of the respondent were terminated as far back as on 30th September 1994, and more than 13 years have elapsed since then and therefore, it is even otherwise necessary that the recording of evidence as also the hearing of the reference proceedings be expedited.

8. The appeal stands disposed of in terms of the aforesaid order.

 
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